McGregor v Maguire [2008] ACTSC 7

3. The amended notice of appeal (dated 21 August 2007) complained that:

His Honour's sentencing discretion miscarried on a misapprehension of the operation and effect of section 33 of the Road Transport (Alcohol and Drugs) Act 1977 and section 67 of the Road Transport (General) Act 1999.

33. Road Transport (Alcohol and Drugs) Act 1977

Automatic driver licence disqualification - repeat offenders, s 19

(1) This section applies only to repeat offenders.

(2) If a court convicts a special driver of an offence against section 19(1) and finds that the concentration of alcohol in the person's blood was at a level mentioned in an item of column 2 of an item of table 33, the person is automatically disqualified from holding and obtaining a driver licence for -

(a) the period mentioned in column 4 of that item; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item - the shorter period.

(3) If a court convicts a person other than a special driver of an offence against section 19(1) and finds that the concentration of alcohol in the person's blood was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for -

(a) the period mentioned in the item applying to that level in table 33, column 4; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item - the shorter period.

Table 33

Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.

67. Road Transport (General) Act 1999

Limitations on issue etc of restricted licences

(1) In this section:

"special disqualification provision" means a provision of the road transport legislation mentioned in section 64(2), other than the Road Transport (Alcohol and Drugs) Act 1977, section 32.

(2) If a person is disqualified from holding or obtaining a driver licence under a special disqualification provision because being convicted of an offence, the person is not eligible to apply for, or be issued with, a restricted licence during the period that is the relevant period under subsection (3).

(3) For subsection (2), the relevant period is -

(a) if the person is a first offender for the special disqualification provision in relation to the offence - the minimum period of disqualification applying to the person under the provision in relation to the offence (whether or not the period is expressed to be such a minimum period); or

(b) if the person is a repeat offender for the special disqualification provision in relation to the offence - the period for which the person is disqualified for the offence.

(4) If a person is disqualified by order under section 65 (Disqualification until court order) from holding or obtaining a driver licence, the person is not eligible to apply for, or be issued with, a restricted licence.

(5) If a person who is the holder of a restricted licence is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted or found guilty by a court in Australia of an offence against the law of any jurisdiction, the person is disqualified from applying for, or being issued with, another restricted licence for the remainder of the period for which the person was originally disqualified from holding or obtaining a driver licence.

5. The penalty was, pursuant to s 216 of the Magistrates Court Act 1930 (ACT), suspended as from 22 June 2007.

6. At the conclusion of the sentencing proceeding, following pronouncement of the sentence, the appellant asked Magistrate Burns:

Am I eligible to apply for a worker's licence?

His Honour: My understanding of the legislation is that at least for the first six months, which is the minimum disqualification period, you are ineligible to apply for a restricted licence. Thank you.

7. It is submitted that was incorrect. Indeed, as Mr Cauchi, for the respondent, conceded, the true situation was that the default period of disqualification was three years, but the learned Magistrate could impose a lesser period provided it was not less than 6 months. His Honour, as noted, imposed a disqualification period of 18 months.

8. However, the appellant, being a repeat offender, was not eligible to apply for a restricted licence during the entire period of disqualification, not merely for the minimum period which could have been imposed. It was in that respect that his Honour's response was in error.

9. It is clear that the appellant could not complain of the conviction or fine. It is clear that his Honour considered that the appellant should be disqualified from driving at all for the minimum period, that is six months, but after that should be at liberty to apply for a restricted licence, but not be eligible for a full licence for a further 12 months.

10. That would have been possible had either s 32 or s 34 of the RT(A&D) Act applied. Those sections are as follows:

32 Automatic driver licence disqualification--first offenders, s 19

(1) This section applies only to first offenders.

(2) If a court convicts a special driver of an offence against section 19 (1) and finds that the concentration of alcohol in the person's blood was at a level mentioned in column 2 of an item of table 32, the person is automatically disqualified from holding or obtaining a driver licence for--

(a) the period mentioned in column 4 of that item; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in column 3 of that item--the shorter period.

(3) If a court convicts a person other than a special driver of an offence against section 19 (1) and finds that the concentration of alcohol in the person's blood was at level 2, 3 or 4, the person is automatically disqualified from holding or obtaining a driver licence for--

(a) the period mentioned in the item applying to that level in table 32, column 4; or

(b) if the court orders a shorter period of disqualification that is not less than the period mentioned in that item, column 3--the shorter period.

Table 32

Note The effect of disqualification is set out in the Road Transport (General) Act 1999, s 66.

34 Automatic driver licence disqualification--offences other than s 19

(1) If a court convicts a first offender of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for--

(a) 3 years; or

(b) if the court orders a shorter period of disqualification that is at least 6 months--the shorter period.

(2) If a court convicts a repeat offender of a disqualifying offence, other than an offence against section 19 (1), the person is automatically disqualified from holding or obtaining a driver licence for--

(a) 5 years; or

(b) if the court orders a shorter period of disqualification that is at least 12 months--the shorter period.

11. If the period of disqualification had been six months then, at the expiration of that period, the appellant could, if the Magistrates Court had authorised it, apply for a restricted licence. That is a separate application. It is governed by ss 45-51 of the Road Transport (Driver Licensing) Regulation 2000 (the Regulation).

12. Section 32 did not apply as the appellant was not a first offender as defined by the RT(A&D) Act, s 4D.

13. Section 34 did not apply as the appellant was convicted of a s 19(1) offence.

14. The problem here is that the appellant was both a special driver and a repeat offender.

15. The "relevant period" for the purposes of s 67 of the RT (General) Act (supra), applicable to the appellant is that referred to in s 67(3)(b).

16. Thus there is no part of the disqualification period imposed on the appellant for which he would be eligible to apply for a restricted licence.

17. The effect of those provisions is, therefore, to deny to a repeat offender the ameliorating benefit of s 47 of the Regulation.

18. The term "repeat offender" has a special meaning. It refers to a person who has, during the previous five years been, inter alia, found guilty or convicted of the same or a "corresponding offence", whether in the Australian Capital Territory or elsewhere in Australia (see s 4D, RT (A&D) Act and the Dictionary (s 2)).

19. The appellant was subjected to breath analysis on 5 April 2007. The result was 0.149 grams of alcohol per 100 millilitres of blood.

20. He was then a "special driver", subject to a limit of .02 grams of alcohol per 100 millilitres of blood, by reason of being the holder of a probationary licence. He was a "repeat offender" by reason of having been convicted of dangerous driving under s 7 of the Road Transport (Safety & Traffic Management) Act 1999 (see s 4D, RT (A&D) Act). That was the only relevant prior offending behaviour, although as part of that behaviour he had committed eight other offences, including speeding and performing burnouts. He was unlicensed. His vehicle was unregistered, uninsured and defective. He was disqualified for three months from the date of conviction being June 2006 as a result of those convictions.

21. Granted that his Honour was, apparently, mistakenly under the impression that the appellant would be eligible for a restricted licence after six months, what effect should that have on the sentence imposed?

22. The appellant suggested that the approach of considering the three year period of "default" disqualification as a starting point to be reduced if appropriate to not less than six months was in breach of the decision of Markarian v R [2005] HCA 25; (2005) 228 CLR 357.

23. It is true that, in that case, the High Court criticised the approach of the New South Wales Court of Criminal Appeal in taking the maximum penalty for the offence in question as a starting point for the sentence to be imposed. The appellant in that case had asked for other offences to be taken into account.

24. The majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) observed, at [24]:

It is not useful to begin by asking a general question like was a "staged sentencing process" followed. That is not useful because the expression "staged sentencing process" may mean no more than that the reasoning adopted by the sentencer can be seen to have proceeded sequentially. Or it may mean only that some specific numerical or proportional allowance has been made by the sentencer in arriving at an ultimate sentence on some account such as assistance to authorities or a plea of guilty. Neither the conclusion that a sentencer has reasoned sequentially, nor the observation that a sentencer has quantified the allowance made, for example, on account of the offender's plea of guilty, or the offender's assistance to authorities, of itself, reveals error.

25. In some cases, for example, future promised assistance to authorities quantification may be required (see for example, Crimes (Sentencing Act )2005 (ACT), s 37). It is, nevertheless, always necessary to have regard to the sentence called for by the objective facts.

[32] The appellant's submission that the passage just quoted involved too great an emphasis upon quantity without regard to the facts of the case, should be accepted. True it is that his Honour did not overlook the objective facts, or indeed any other matters relating to penalty, but having started where he did, at a maximum, and then making deductions from it, he did not make, even in a provisional way, an assessment of the sentence called for by the objective facts. It might or might not be appropriate for a trial judge to state such a provisional view. A judge would rarely be in error in not doing so. It is, after all, a provisional position only.

26. The only restriction endorsed by the joint judgment related to the debate between a "staged approach" and an "instinctive synthesis" approach to sentencing. At [39] their Honours said:

... it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently subliminally derived figure, passages of time in order to fix the time which an offender must serve in prison ...

27. However, that is not to say that transparency of reasoning, allowing relevant and quantified discounts for a plea of guilty, cooperation and the like might not be appropriate.

28. There is also the important qualification that relevant legislation may dictate a particular approach.

29. So it is with the RT (A&D) Act. It does not require the sentencer to impose a particular period of disqualification. For this kind of case, a disqualification of three years follows if no other order is made. However, the sentencing court may reduce that penalty to not less than a particular figure. The learned magistrate chose to exercise his discretion so to do. That is an approach required by the statute and is not erroneous.

30. The question is whether, it being now apparent that the learned Magistrate had in mind a s 33 offender rather than a s 34 offender, that error should lead to an amelioration of the sentence.

31. It was no doubt in his Honour's mind that the grant of a restricted licence after six months was not an inevitable or even likely outcome even if the appellant was eligible to apply. He would have had to satisfy the stringent requirements of s 47 of the Road Transport (Driver Licensing) Regulation 2000. Given his record, that could be difficult. The necessity for such a licence would also need to be established.

32. If it was open to do so, I would not regard the prospect of such an application after a suitable period, not less than six months, as inappropriate. Nor do I consider that 18 months was less than an appropriate reduction, in the circumstances, of the automatic or default period.

33. Nevertheless, it is apparent that his Honour proceeded to impose a penalty under a misapprehension. Had that been drawn to his attention, he may well have allowed a greater reduction in the period of disqualification. I do not think a reduction below 12 months could be justified.

34. I would, therefore, uphold the appeal so as to reduce the disqualification period to 12 months but not otherwise. I will hear the parties as to consequential orders.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the defendant: ACT Director of Prosecutions